The Pennsylvania Commonwealth Court (an intermediate appellate court) decided an interesting takings case yesterday. As described by the court, the core issue was "whether the Redevelopment Authority of the City of Philadelphia may exercise eminent domain power to condemn a private homeowner's property, located in an area of North Philadelphia that was certified as blighted, and then turn over the acquired property to a purely private religious organization to construct and operate a private independent school." In a 4-3 decision authored by Judge Doris A. Smith-Ribner, the majority held that the taking violated the Establishment Clause. The court applied a three-factor Establishment Clause test : "[A] legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion."

The application of the three-part test shows unequivocally that the Authority's taking contravened the Establishment Clause. First, the Authority's primary purpose was to acquire land for the Hope Partnership to make it available for the construction and operation of a private school. Although the Authority argued that no contract is yet executed between the Authority and the Hope Partnership, such evidence is immaterial where the redevelopment proposal included the religious organization as the developer, the Planning Commission approved the proposal, City Council enacted the required ordinance and the Authority then proceeded with its taking. Second, the Authority's land acquisition for the Hope Partnership had a primary religious effect because it directly aided the religious organization's mission to provide faith-based educational services, among other things, to residents in blighted areas. The land acquisition had the primary effect of advancing religion. Third, there is no dispute that the Authority jointly worked with the Hope Partnership in effectuating the taking. The evidence shows that the Hope Partnership designated the land that it wanted and requested the Authority to acquire it, and the Authority proceeded to do so. This joint effort demonstrates the entanglement between church and state.

Judge Dan Pellegrini authored the dissent. He first asserted that even if there was an Establishment Clause problem it should only invalidate the transfer of the property to the Hope Partnership and not invalidate the taking. He then argued that there was no underlying Establishment Clause violation:

First, it is well-settled that after the property is acquired and the blight is eliminated, that property can be conveyed to a private developer. What the majority is suggesting is that the Authority, or for that matter, any governmental entity could not convey property that it has in its possession for a church, school or nursing home, a college run by a religious group or a shelter run by the Salvation Army because that would aid religion and violate the Establishment Clause. To the contrary, what that outcome suggests is "viewpoint discrimination" against religious groups, which is an impingement on their First Amendment rights that has been condemned by the United States Supreme Court in Good News Club v. Milford Central School, 533 U.S. 98 (2001).

Second, based on what has been pled about the project, there is no possible Establishment Clause violation because there is no proof that the project is a religious enterprise, but only that is its being run by groups who have religious motivations to educate the poor. Holy Child, Brothers of the Christian Schools and Sisters of Mercy, the religious orders that are sponsoring the project, state in their Vision Statement that the project is for the purpose of "creating an intergenerational, independent educational center in an economically depressed and educationally underserved area of North Philadelphia," with the intent to serve "a variety of religious backgrounds and beliefs." Because Holy Partnership has not yet shown its intentions are otherwise, until such time we must take it at its word and give it the opportunity to provide the middle school, after-school programs and adult center for students from a variety of religious backgrounds and beliefs.

I am not knowledgeable enough on Establishment Clause issues to have a view on the merits, and would welcome comment from anyone with an informed (or uninformed) view on the issue. I expect that the case will go up to the Pennsylvania Supreme Court. Whatever the result, the case makes an interesting counterpoint to post-Kelo controversies about economic development takings of church properties.

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Comments

This comment is more in the way of a hypothetical: what if, instead of a religious organization, the people who wanted to establish this school established a secular non-profit foundation to acquire the property from the Redevelopment Authority and then build the school. After the school was built, the secular non-profit would turn around and sell the school building to a religious institution.

If we make a bright-line rule which says properites acquired via eminent domain can't be given to religious institutions because of establishment-clause concerns, does this prevent the property from ever being sold to a religious organization? If not, can we imagine religious organizations from creating these "secular" front organizations to acquire the property and then re-sell it.

It seems to me that this hypothetical leads me to support Judge Pelligrini's dissent: under the Redevelopment statutes in Pennsylvania, the taking is a public purpose if the property is in a designated blight zone, almost irregardless of its disposition.

I am intrigued also by the dissent which argues that a policy prohibiting distribution of condemnded parcels to religious organizations constitutes a different establishment-clause issue, that of preferring non-religion to religion.